On Jul 18 2006 by H. Ronald Klasko

Unprecedented Government Action Thwarts Legal Immigrants

In an unprecedented series of events between June 13 and July 2, tens of thousands of legal immigrants from every country in the world had their hopes raised and then dashed by the US Department of State (DOS) and US Citizenship and Immigration Services (CIS).

Specifically, on June 13, 2007, DOS issued a Visa Bulletin indicating that all quota backlogs in all employment-based immigration categories (except for lesser skilled or unskilled workers) would disappear commencing July 1, 2007. In reliance upon the Visa Bulletin, tens of thousands of immigrants on temporary visas, many of whom had been waiting in quota backlogged lines for many years, spent untold millions of dollars in retaining counsel, performing medical examinations, in some cases flying back to the United States, so as to be able to file for permanent residence on July 2, the first business day of the month of July. However, on July 2, in a stunning and unprecedented bait and switch, the State Department issued a revised Visa Bulletin indicating that all immigrant numbers in all employment categories for all countries had been used up for the entire fiscal year. Based upon this, USCIS issued a directive announcing that the tens of thousands of applications filed on July 2 would all be rejected; and no further application in any employment-based category would be accepted for the remainder of the fiscal year. Class action litigation has been commenced, and congressional investigations are expected imminently.

This article will provide background on how this happened and the chances of litigation to overturn it.

Congress has set an annual limit of 140,000 employment-based immigrants, with numbers divided both by country and by employment-based categories. The first employment-based category includes multinational managers, outstanding professors and researchers and aliens of “extraordinary ability”. The numbers allocated to this category have traditionally not been fully utilized, resulting in no waiting lists. The employment-based second preference category includes aliens whose work is in the national interest and aliens with exceptional ability or advanced degrees who can prove that they are not taking a job from a qualified and interested US worker through the labor certification process. The quota in this category has traditionally remained current for all countries except China and India, for which there was a multiple year waiting list. The third employment-based category includes aliens without advanced degrees who successfully obtain a labor certification. This category has been the most substantially backlogged, with waiting lists ranging from three to four years to ten to fifteen years depending upon country and skill level. Both the employment-based fourth preference (religious workers) and the employment-based fifth preference (investors) have been underutilized, resulting in no waiting list.

The Department of State is charged with making certain that no more than the congressionally-authorized number of immigrant visas (permanent residence or green cards) are approved in each category, from each country, in each year. In discharging that function, DOS each month issues a Visa Bulletin advising who can file an application to adjust status to permanent resident in the following month based on their employment category and their country. In the month of June, India and Chinese natives in the employment-based second preference category and nationals of all countries in the third preference category were looking at a lengthy wait, estimate of between three and fifteen years depending upon country and category.

Here’s where it gets interesting. July is the beginning of the final quarter of the government fiscal year, which ends September 30. Despite optimistic monthly estimates given by CIS to DOS each month in 2007, in fact CIS approved far fewer applications for permanent residence than estimated. In previous years, this same disparity between estimates and actual approvals resulted in DOS unwittingly issuing far fewer numbers for approved immigrants than it is required by Congress to issue annually. In fact, over 182,000 green card numbers have been squandered since 2000 because of faulty CIS approval estimates, despite the hundreds of thousands of legal immigrants patiently waiting. In order to prevent this from happening again this fiscal year, DOS on June 13 released the July Visa Bulletin making all employment-based categories (other then lesser-skilled and unskilled workers) completely available for all countries.

In order to prevent the onslaught of applications that it would be receiving in July, CIS approved 60,000 pending permanent residence applications in June, reportedly including 25,000 on the final weekend of June. To put this in some perspective, CIS had approved a total of 66,000 applications in the entire first six months of the fiscal year. How CIS was able to approve this number of applications, what security clearance procedures were disregarded to do so and why these applications were not approved previously (many were pending large numbers of years) will likely be the subject of congressional investigation and is already the subject of a class action litigation. Speculation is that CIS did not want all of these applications filed before its unprecedented fee increase (some filing fees increase 200 to 300 percent) effective July 30, 2007.

DOS, faced with last minute approvals exceeding the allowable limit, chose to issue a revised Visa Bulletin on July 2, indicating that no employment-based immigrant can file in the month of July – – or in fact for the remainder of the fiscal year. This enabled CIS to reject all applications filed on July 2, and after July 2, by otherwise-eligible immigrants. These immigrants will not be able to re-file until, at the earliest, October 1, 2007, when the new fiscal year begins. For many, the filing date will likely be many years after October 1, given the expected reinstatement of lengthy quota backlogs.

In addition to having their hopes raised and then dashed, immigrants from around the world lost hundreds and in most cases thousands of dollars on this futile reliance on the government’s bait and switch. Since a foreign national had to be in the US on the date of filing, many had to cancel summer trips or return from abroad to the US, all for naught. Many immigrants find themselves with their temporary legal visa statuses expiring, or with their children turning 21, meaning that they may lose all eligibility for permanent residence by not being able to file.

The litigation is likely to be both fact-based and law-based. The factual issues will be based on whether CIS actually approved all of the cases reported to DOS and whether it improperly short-circuited required security clearance procedures in order to do to. The legal issues are likely to include whether the revised Visa Bulletin, which is unprecedented, is a new agency “rule” that requires public notice and an opportunity to comment before the change could take effect under the Administrative Procedure Act. There may also be allegations that the revision to the July Visa Bulletin and the actions in response taken by CIS violate the requirements of President Bush’s January 2007 Executive Order requiring prior review of “significant guidance documents” by the Office of Management and Budget. Finally, a cause of action may be premised upon reliance by the public, employers and foreign nationals on long-standing and settled agency practice that, once a Visa Bulletin is issued for the following month, it is valid for the period stated and cannot be revoked.

Also, the Chairman of the Immigration Subcommittee in the House of Representatives, Zoe Lofgren, has requested detailed explanations from both DOS and CIS regarding these actions. Many are anticipating that representatives from both agencies will be called to testify before the House of Representatives and also possibly before the Senate. It is anticipated that members of Congress from both sides of the immigration debate will have plenty of pointed questions. Members of Congress more favorably disposed to immigration and immigrants will be looking into the propriety of offering this benefit to immigrants and then taking it away with no notice, with the possible goal of reversing the deleterious government action. Members of Congress on the other side of the immigration debate will likely focus their questions on the short cuts taken by CIS in approving unprecedented numbers of permanent residence applications, with attendant possible bypassing of normal processing procedures and security clearances, to meet its goal of shutting out immigrants for filing in July.

In the meantime, immigration attorneys are left to counsel applicants who filed and were rejected on their options, as well as applicants who were preparing to file on whether filing and being rejected might be beneficial in the event of successful litigation.

The one principle on which all may agree is that this is yet another example of how the immigration system is broken and needs a legislative fix. With the failure of the immigration bill in the Senate in June, that fix is nowhere near imminent.

Published in The Legal Intelligencer on Wednesday, July 18, 2007